One of the most remarkable aspects of the "green buildings" movement in the United States is how little litigation it has spawned to date. And by "little," we mean "almost none." In this ever-litigious country, this is remarkable. To what do we owe this phenomenon, and what conclusions should we draw from it?
The legal blogosphere is absolutely perplexed by this. For the past two or three years, there has been a drumbeat of blog posts predicting that a tidal wave of litigation would ensue from the green buildings movement; one blogger anticipatively and creatively coined the term "LEEDigation" in homage to the U.S. Green Building Council's market-leading Leadership in Energy and Environmental Design program, known as "LEED." And then—silence from the courthouses. So far, the number of known cases involving LEED or other aspects of green buildings number fewer than a dozen, even including federal preemption challenges brought by industry groups to halt local legislation that has outpaced federal legislation on standards applicable to green buildings and performance. (Ironically, as this article went to press, an anti-LEED gadfly sued the U.S. Green Building Council itself via a purported class action. The nub of the complaint is that LEED allegedly promises outcomes it does not deliver. But that is not the kind of litigation between private parties that the blogosphere has been breathlessly anticipating as a growth industry.)
Is it too soon, which seems unlikely in the U.S., where it seems there is always someone willing to sue someone else over something somewhere? Is it, the animosity behind the new lawsuit against the USGBC notwithstanding, that green building is such a "feel-good" movement that no one wants to sue? Is it that the Great Recession has so quashed the real estate development market that there are fewer new green buildings over which claims can be made? Is it that savvy architects and engineers have avoided liability by simply refusing to contractually promise their building owner clients positive green outcomes in designing and constructing new buildings? Is it that no one has yet figured out what actual damages parties suffer when someone doesn't perform "greenly," and without substantial damages at stake, plaintiffs' lawyers are not interested in filing suit? Is it because most private-party claims are quietly resolved by insurance companies or via arbitration?
Whatever the cause or causes, green building clients probably should not simply go on their way without legal assistance. The "movement" aspect is disappearing as municipalities, counties, and now states add green requirements to their building codes, expanding the physical scope of necessary compliance and the consequences of noncompliance. The evolution of green building standards—moving toward performance-based standards from traditional design-and-construction-based standards—will add complexity to the process and inject tenants into the mix of parties with axes to grind.
So, the short answer is, as always, be careful. What you agree to do, and what you do (or don't do), can come back to haunt you.